Free Motion to Suppress Evidence - District Court of Delaware - Delaware


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Case 1:07-cr-00157-SLR

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IN THE FEDERAL DISTRICT COURT FOR THE DISTRICT OF DELAWARE

UNITED STATES OF AMERICA Plaintiff, vs. PHILIP GRAHAM, Defendant. CASE NO. CR 07-157-SLR

MOTION TO SUPPRESS EVIDENTIARY HEARING REQUESTED

PHILIP GRAHAM respectfully requests this court suppress all evidence seized relating to the execution of the search warrant (Exhibit 1) for the reasons contained in the attached brief and based upon the evidence produced at a hearing on this motion.

/s/ Clayton A. Sweeney, Jr. DE Bar No. 3359 PO Box 55441 Philadelphia PA 19127-5440 (215) 509-1012 (215) 509-1013 (f) [email protected] PENDING ADMISSION PRO HAEC VICE Dean Boland 0065693 18123 Sloane Avenue Lakewood, Ohio 44107 216-529-9371 ph 866-455-1267 fax [email protected]

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LAW AND EXPLANATION The Fourth Amendment to the United States Constitution recognizes the right of the people to be protected from the government's unreasonable searches and seizures and mandates that no search warrant shall issue "but upon probable cause, supported by oath or affirmation...." U.S. Const. amend. IV. "The task of the issuing magistrate is simply to make a practical, common-sense decision whether given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). While an affidavit can include hearsay, as the one in this case does, "an issuing magistrate could find probable cause if the informant's hearsay information is corroborated, or the informant is "an unquestionably honest citizen." Gates at 233, 244, 103 S.Ct. at 2330, 2335. Conclusory statements fail to meet the probable cause requirement; the reviewing magistrate cannot abdicate his or her duty and become a mere ratifier of the bare conclusions of others. Gates, 462 U.S. at 238, 103 S.Ct. 2317. And, pursuant to Gates, the reviewing court is required to ensure that a substantial basis existed to support the magistrate's probable cause determination. Id. at 238-39, 103 S.Ct. 2317. Evidence seized using a warrant supported by a "bare bones" affidavit must be suppressed. (See United States v. Loy, 191 F.3d 360, 368 (3rd Cir.1999); United States v. Hodge, 246 F.3d 301, 305 (3rd Cir.2001) at 309. Use of Hearsay in Search Warrant Affidavits It is the rule of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), that "although an affidavit (submitted to support the issuance of a search warrant) may be based

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on hearsay information . . . the magistrate must be informed on some of the underlying circumstances from which the informant concluded that" evidence of crime was to be found in the place to be searched. (378 U.S. at 114, 84 S.Ct. at 1514). Affiant just concludes that site had contraband. Did not indicate whether it also had legal content. Did not indicate whether all subscribers were given access. Did not indicate whether Graham, whom allegedly subscribed, actually downloaded anything from the site. This is easy to obtain. View records of the site following Graham's purchase of the subscription. No indication that Graham saw any web page that indicated anything illegal was available on the site. People can click on links from infinite sources to reach the same web page. Some know are provided accurate information about the site they are clicking to, some are not. Especially illegal websites have an incentive to mask their real content while still getting potential subscribers to click on links and visit their site. The affiant here is FBI Agent William Horn. He claims that the "instant investigation" has revealed that Mr. Graham "purchased at least two subscriptions to a website" that was distributing contraband images. (Exhibit 1 at 6). He the proceeds to use terms without definitions to describe the website. No other site information is provided except this conclusory statement (not sourced to Horn or any other law enforcement officer) that the site to which Mr. Graham allegedly subscribed was involved in distributing contraband images. In 15 he references "agents with ICE" located a website known as the "illegal CP" website. Yet, the site is not at the address www.illegalcp.com. It is actually at an innocuous sounding address of hualama.cjb.net. That site, in turn, can only be accessed by clicking through from a site called "http://deadundead.info...." Neither of those site addresses imply any contraband content will be found at those locations. How did Mr. Graham, an alleged

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subscriber, find these sites? Was he lured to them under false pretenses from yet another site? Did he land on deadundead and presume it was a site designed for some other purpose? The affiant does not say. The affiant also does not provide any indication as to basis for the signing judge to rely upon the "agents with ICE" and their conclusions about the content of the hualama site. Did those agents track down the creators of the "appears to be" images on the main page of hualama? Did Mr. Graham see this page with this arrangement of images when he allegedly subscribed? The signing judge has no idea and neither does the affiant. In 23, the affiant notes the "website had shifted the contents of the website to another server located in McLean, Virginia." Who was the source of that information if not the affiant? Was all information that was "shifted" accurately represented on the new server? Did the affiant compare this new server with the previous server? Did anyone ever make that comparison to insure that no mistakes were made by apparent criminals when they "shifted" the key financial data of their contraband image business? Log Files The affiant continues in 23 to not that log files existed on the server that tracked information about alleged subscribers. The log file contained the alleged subscriber's ID, member login, email address and the date and time when the member's subscription began along with the IP address from where the alleged subscriber first established their subscription. More importantly, "each video or image...accessed by a member" was reflected in the log files. Footnote 10 asserts that although the design and graphics of the website was "changed on numerous occasions" it "always featured" contraband images. The affiant does not indicate whether he verified the images displayed were contraband. Did another officer do so? If so, that

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information was hearsay as to the affiant here and he provided no information to substantiate that claim of images depicting actual minors appearing on the home page of the site. 26 then provides the conclusory statement that "during the course of the investigation" using "numerous investigative techniques" anonymous "ICE agents" identified ADSOFT as a company "laundering" funds generated from the contraband image sites. Was ADSOFT an otherwise legal operation? Who determined ADSOFT was involved in this illegal laundering? The affiant does not say who the hearsay declaration was that provided that information. 37 reveals that the probable cause evidence was more than a year stale by the time agents sought their warrant on the anonymous hearsay information. It alleged that Graham had purchased a subscription to the alleged contraband image sites on two dates -- May 23, 2006 and June 16, 2006. Those subscriptions were for 20 days of access. (See 14). The log files mentioned above contained information regarding which user downloaded which files. This affidavit reveals that Graham did not ever download anything from the sites during either of those 20 days subscriptions. In addition, the latest of the two subscription purchases was done more than 16 months prior to the search warrant request. The affiant provides no basis for the signing judge to conclude that Graham retained anything on his computer from those subscriptions. The signing judge could not possibly have reasonably concluded that Graham did given that the affiant himself had no evidence Graham had ever downloaded anything. Without downloading, there is no retention for any period of time, much less 16 months. 18 U.S.C. 2252 and 2252A do not prohibit subscribing to any website, even one that advertises it contains contraband images. At most, such a subscription evidences an intent to, at some point in the future, review the content of the site and, perhaps, download some of that

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content. The affiant had a means to determine whether Graham ever downloaded anything and the four corners of the affidavit reveal that Graham did not. While the affidavit consumes some 50 pages, the reality is, the portions relevant to Mr. Graham are but a page or two and reveal that the anonymous "ICE agents" had absolutely no evidence that Mr. Graham had ever received or possessed any contraband images. In recognition of this obvious deficiency of probable cause, the affiant tried to sell the signing judge on probabilities based upon prior searches related to this particular site. In 24 the affiant claims that "90 percent" of the individuals searched as a result of obtaining names from the log files possessed or admitted to possessing contraband images. The 4th Amendment, however, has no such probability exception. In fact, its strictures focus on particularity, not probability. If probability were the standard, the application of the 4th amendment would rely solely on after-the-fact analyses of what law enforcement found after the search to determine the search validity. The Constitution does not permit such retrofitted analysis. The analysis here is, what information, specific information relating to Mr. Graham, did the affiant present to the signing judge? The answer can be summed up in two sentences. The affiant had information from one or more anonymous hearsay declarants that Mr. Graham's credit card had been used to purchase two 20-day subscriptions to a website claiming to contain contraband images. Those two 20-day subscriptions had been purchased more than 16 months prior to the presentation of the warrant for signing and the investigator's log files indicated that Mr. Graham had not ever downloaded a single video or image at any time. From that probable cause, the affiant alleged that Mr. Graham had both received and currently possessed contraband images.

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This is akin to seeking a warrant to search the residence of a John Q. Public who visited a home, 16 months ago, that was involved in drug trafficking although there is no evidence Mr. Public has ever engaged in criminal activity of any kind, including drug trafficking. Analysis limited to the Four Corners of the affidavit The sufficiency of an affidavit, like the determination of an officer's good faith reliance on it, is an assessment confined to the four corners of the affidavit. (United States v. Hython, 443 F.3d 480, 487). Constitutional Right versus Probable Cause for Criminal Conduct Possession of images or digital videos1 that merely "appear to be" contraband by visual examination is a "First Amendment freedom." Ashcroft v. Free Speech Coalition 535 U.S. 234, 122 S.Ct. 1389. The more realistic looking the "appears to be" images are the more deserving of First Amendment protection. "Protected speech does not become unprotected merely because it resembles the latter. The Constitution requires the reverse." Id. at 1404. "[T]he possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted ...." Broadrick v. Oklahoma, 413 U.S., at 612, 93 S.Ct. 2908. Probable cause in this case means the affiant presented sufficient information to establish that the suspected contraband files on the website were not files representing the exercise of a constitutional right by the possessor that file. The affiant just concludes the files on the site were contraband without providing the signing judge any basis for that conclusion. The distinguishing between unaltered and altered digital images is something that not even government expert witnesses are able to reliably do. The affiant here, nor any of the anonymous hearsay declarants upon which he relied, could possibly have reliably made that determination by visual
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The terms images and digital videos are used interchangeably for purposes of this motion. 7

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examination alone. The affidavit, however, provides no basis for the claim that the site contained contraband images. The affidavit, therefore, does not contribute to any probable cause that the person downloading or offering for download this file is engaged in criminal activity versus constitutionally protected conduct. The affidavit does not state that the affiant confirmed the contraband nature of even one file on the website. It does not state who, if anyone, has made that determination. The unknown status of the file is simply labeled in a conclusory fashion as contraband. The probable cause determination and scrutiny is heightened in cases in which the "suspected" contraband is easily confused with constitutionally protected material. (Free Speech Coalition). "[Constitutionally protected and contraband] images...are typically circulated through the Internet." United States v. Williams, 444 F.3d 1286, 1305-06 (11th Cir. 2006). As repugnant as the right may be, citizens are entitled to seek out and possess images that "appear to be" contraband. (Free Speech Coalition). "Appears to be" contraband images cannot suffice as probable cause of possession of actual images without chilling completely the constitutional right stated in Free Speech Coalition. Evidence from a search can be suppressed if the affidavit contains statements that were intentionally false or made with reckless disregard for the truth. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). In this case, the affiant expresses no personal knowledge regarding the truth of the central fact of the affidavit -- that the website at hualama contained contraband images at all.

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There is no corroboration of the anonymous hearsay, double hearsay or triple hearsay provided in this affidavit. No statement in the affidavit corroborates the honesty of the unknown detective or investigator who saw the alleged contraband images depicted on the website. No federal case law that permits the use of triple or quadruple hearsay in any event. Judicial Oversight Role The affidavit and warrant establish that the signing judge never viewed the alleged contraband images on the alleged illegal website. Given the proximity of a image representing either a felony or the exercise of a constitutional right, it was incumbent upon the signing judge to view at least one or some of the images allegedly found on the home page of that site in question to make an independent determination of its probable cause. The affiant did not even present to the signing judge a recreation of what the site appeared like on the date and time when Mr. Graham allegedly purchased his two subscriptions. In this respect, the signing judge abandoned his judicial role and merely provided a rubber stamp to the following presumptions: 1. The website had contraband images (based upon an anonymous hearsay declarant whose reliability is never established) 2. Mr. Graham purchased a subscription to the site 16 months prior to the issuance of the warrant. 3. 4. 5. Mr. Graham was able to download information from that site. Mr. Graham never did download information from that site. (According to the log files). But, if Mr. Graham downloaded information from that site, he retained that information for those 16 months. 6. That images he may have downloaded, although the evidence the affiant had was that he did not download any such images, were, in fact, contraband and not something that

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merely "appears to be" contraband and is constitutionally protected as the court identified in Free Speech Coalition. 7. The affiant had the ability to know that the information that Graham may have downloaded was not the type that is constitutionally protected as outlined in Free Speech Coalition despite the fact that government digital imaging experts lack the capacity to make that distinction. CONCLUSION Wherefore, Mr. Graham respectfully requests this court exclude all evidence seized in connection with the search warrant (Exhibit 1) executed in this case and all statements or other evidence that flowed from the execution of that warrant.
/s/

Clayton A. Sweeney, Jr. DE Bar No. 3359 PO Box 55441 Philadelphia PA 19127-5440 (215) 509-1012 (215) 509-1013 (f) [email protected] PENDING ADMISSION PRO HAEC VICE Dean Boland 0065693 18123 Sloane Avenue Lakewood, Ohio 44107 216-529-9371 ph 866-455-1267 fax [email protected]

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that one true and correct copy of the foregoing has been furnished to the Edmund Falgowski, Esquire., U.S. Attorney's Office, 1007 Orange Street, Suite 700 , P.O. Box 2046, Wilmington, DE 19899-2046 by filing through the CF/ECM electronic filing system this 31st day of March, 2008. /s/ Clayton A. Sweeney, Jr.

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